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[U] In re of N.J.-D.

Superior Court of Pennsylvania

January 31, 2014

IN THE INTEREST OF: N.J.-D., A MINOR
v.
APPEAL OF: A.M. AND R.M., FOSTER PARENTS IN THE INTEREST OF: D.J., A MINOR APPEAL OF: A.M. AND R.M., FOSTER PARENTS IN THE INTEREST OF: H.R., A MINOR APPEAL OF: A.M. AND R.M., FOSTER PARENTS IN THE INTEREST OF: I.R., A MINOR APPEAL OF: A.M. AND R.M., FOSTER PARENTS

NON-PRECEDENTIAL DECISION

Appeal from the Order Entered June 26, 2013, In the Court of Common Pleas of Lancaster County, Juvenile Division, at Nos. CP-36-DP-0000122-2010, CP-36-DP-0000114-2010, CP-36-DP-0000115-2010, CP-36-DP-0000177-2010.

BEFORE: DONOHUE, SHOGAN and MUSMANNO, JJ.

MEMORANDUM

SHOGAN, J.

A.M. and her husband R.M. ("Foster Parents"), the former foster parents of the four subject children, N.J.-D., D.J., H.R., and I.R. ("the Children"), appeal from the orders entered on June 26, 2013, allowing the Children, who had been adjudicated dependent under section 6302 of the Juvenile Act, 42 Pa.C.S.A. § 6302, to be relocated to their current pre-adoptive placement. We affirm.

In its opinion entered on August 22, 2013, the trial court set forth the procedural history of this appeal, which we adopt as this Court's own. Trial Court Opinion, 8/22/13, at 1-2. Importantly, D.J., N.J.-D., and H.R. were adjudicated dependent on August 31, 2010, and were placed with Foster Parents in November of 2010, prior to the birth of I.R. Id. at 1. I.R. was placed with Foster Parents after his birth. Id. at 1 n.1. The Children remained in placement with Foster Parents until May 31, 2013, when they were removed, after Lancaster County Children and Youth Social Service Agency ("the Agency") received reports of abusive conduct and domestic violence in the home. Id. at 2. After spending a few weeks in respite care, the Children then were placed in their present pre-adoptive home. Id. at 2, n.4. Thereafter, on June 26, 2013, the Agency filed a motion for modification of child's placement. Id. at 2. In the motion, the Agency stated that the Children had previously visited with their new resource family in the fall of 2011 as a potential adoptive resource, and that their guardian ad litem was in agreement with the change in placement. Id. Without holding a hearing on the matter, on June 26, 2013, the same date that the Agency presented the motion to the trial court, the trial court entered the orders granting the modification in the placement of the Children and continuing legal custody with the Agency. Id. at 1-2.

On July 26, 2013, Foster Parents timely filed notices of appeal from the trial court's orders and a concise statement of errors complained of on appeal pursuant to 1925(a)(2)(i) and (b).[1] This Court, sua sponte, consolidated the appeals on August 14, 2013.

Foster Parents raise the following issues for our review:
1. Were [Foster Parents] advised of the right to be present at the Hearing which created the June 26, 2013 order which resulted in the removal of their Foster Children?
2. Were [Foster Parents'] vested due process rights violated when they were not given an opportunity to present information to the court before the entry of the order dated June 26, 2013 which resulted in the removal of their Foster Children?

Foster Parents' Brief at 4.

Foster Parents contend that the trial court erred in its application of section 6336.1 of the Juvenile Act. Foster Parents argue that Pennsylvania Rule of Juvenile Court Procedure ("Pa.R.J.C.P.") 1606 required the trial court to hold a hearing on the modification of the Children's placement because there was no stipulation to the relocation. Foster Parents assert that they were deprived of their constitutional guarantee to due process of law because they were not provided with notice of the presentation of the motion, so that they could object with an opportunity to be heard at a hearing, or with an opportunity to seek redress of their grievances through an administrative appeal to the Department of Public Welfare ("the DPW") under 55 Pa.Code § 3700.73(a)(2).[2]

Our Supreme Court set forth our standard of review for dependency cases as follows:

[T]he standard of review in dependency cases requires an appellate court to accept the findings of fact and credibility determinations of the trial court if they are supported by the record, but does not require the appellate court to accept the lower court's inferences or conclusions of law. Accordingly, we review for an abuse of discretion.

In re R.J.T., 9 A.3d 1179, 1190 (Pa. 2010).

The trial court viewed the issues as involving the standing of Foster Parents to be parties to the motion. An issue regarding standing to participate in dependency proceedings is a question of law warranting plenary review, and our scope of review is de novo. In re J.S., 980 A.2d 117, 120 (Pa.Super. 2009). See Silfies v. Webster, 713 A.2d 639, 642 n.6 (Pa.Super. 1998) (explaining distinction between standard of review and scope of review). "[T]he question of standing is whether a litigant is entitled to have the court decide the merits of the dispute or of particular issues." Silfies, 713 A.2d at 642.

Section 6336.1 of the Juvenile Act addresses notice and hearings in juvenile matters and provides, in relevant part, as follows:

§ 6336.1. Notice and hearing

(a) General rule.—The court shall direct the county agency or juvenile probation department to provide the child's foster parent, preadoptive parent or relative providing care for the child with timely notice of the hearing. The court shall provide the child's foster parent, preadoptive parent or relative providing care for the child the right to be heard at any hearing under this chapter.
Unless a foster parent, preadoptive parent or relative providing care for a child has been awarded legal custody pursuant to section 6357 (relating to rights and duties of legal custodian), nothing in this section shall give the foster parent, preadoptive parent or relative providing care for the child legal standing in the matter being heard by the court.

42 Pa.C.S.A. § 6336.1 (emphasis added).

In In re J.S., 980 A.2d 117 (Pa.Super. 2009), a panel of this Court addressed an appeal by the agency and the mother of the subject child from the trial court's grant of permission for the child's foster parents (who were the child's aunt and uncle) to intervene in an ongoing dependency proceeding. The panel reversed, citing section 6336.1, and reasoning that the foster parents lacked legal custody and lacked standing both to participate in the proceedings and to review the juvenile court record. Id. at 122-123. Moreover, the panel noted that the foster parents could not stand in loco parentis to the child because their status as foster parents was subordinate to the agency, which maintained legal custody and was primarily responsible for the child's care and custody. Id. at 122 n.4.

Further, Rule 1606 addresses the modification of dependent child placement and provides, in relevant part, as follows:

Rule 1606. Modification of Dependent Child's Placement
A. County agency's duties.
(1) Emergencies.
(2) Non-emergent cases. In all other cases, the county agency shall seek approval of the court for a change in the child's placement prior to the removal of the child from the placement by filing a motion or a stipulation of modification of the dispositional order.
B. Contents of the motion. The motion for modification of the dispositional order shall include:
(1) the specific reasons for the necessity of change to the order;
(2) the proposed placement;
(3) the current location of the child;
(4) the manner in which any educational, health care, and disability needs of the child will be addressed;
(5) an averment as to whether each party concurs or objects to the proposal, including the child's wishes if ascertainable; and
(6) the signatures of all the parties.
C. Objections. If a party objects to proposed modification of the dispositional order, the objections shall be filed no later than three days after the filing of the motion for modification of the child's placement.
D. Court's duties. Once the county agency has requested approval from the court to modify a child's placement or after an emergency change in placement has already taken place, the court may:
(1) schedule a prompt hearing to determine whether there will be a modification of the child's placement;
(2) enter an appropriate order to modify the child's placement; or
(3) enter an order denying the motion.
Comment: This rule is intended to address changes in the child's placement. Brief temporary removals for hospitalization, respite situations, visitations, or other matters when a child will be returned to the same placement are not covered under this rule.
Pursuant to paragraph (A)(1), if there must be a change in the placement of the child due to an emergent situation, the county agency may temporarily place a child in a shelter-care facility or other appropriate care pending the filing of a motion for modification of the dispositional order. The county agency immediately is to notify the court and all parties of the change made and file a motion or stipulation by the next business day.
Pursuant to paragraph (A)(2), in all other cases, the court is to make a decision prior to the child being removed from the placement. Stability for the child is critical. Multiple placements can add to a child's trauma. A child should not be shuffled from home to home out of convenience for a foster parent, relative, or other person caring for the child.

Pa.R.J.C.P. 1606.

In its opinion, the trial court addressed the issues as follows:
[Foster Parents] argue they should be given standing in this matter. Under 42 Pa.C.S.A. § 6336.1(a) the court is required to provide foster parents the right to be heard at any hearing. However, Section 6336.1(a) also provides that unless the foster parent has been granted legal custody, they are not considered to have legal standing in the matter being heard before the court. . . . [Foster Parents] were never granted legal custody of the Children and therefore not considered a party. Under Pa.R.J.[C.]P. 1606(D) when the county agency has requested approval from the court to modify a child's placement the court may do one of three things. The court may: "1) schedule a prompt hearing to determine whether there will be a modification of the child's placement; 2) enter an appropriate order to modify the child's placement; or 3) enter an order denying the motion." The court is under no obligation to hold a hearing if one is not warranted. The motion indicated that all parties were in agreement as there were allegations of abuse and domestic violence and the Children were in respite care at the time of this order. [The trial court] did not find it necessary to hold a hearing on this motion. [Foster Parents] were never advised of their right to be at the hearing because no hearing was held nor was a hearing required to be held.
Second [Foster Parents] claim their vested due process rights were violated when they were not given an opportunity to be heard at a hearing regarding the June 26, 2013 Order. Under section 6336.1, if a hearing was held, [Foster Parents] would have had a chance to be heard. As there was no hearing, there was no requirement that [Foster Parents] be given a chance to be heard.

Trial Court Opinion, 8/22/13, at 2-3.

In the instant appeal, because legal custody of the Children has remained with the Agency at all times, based on the clear language of section 6336.1, we discern no error or abuse of discretion on the part of the trial court in finding that Foster Parents lacked standing as parties to the motion. Furthermore, pursuant to Pa.R.J.C.P. 1606, the trial court was not required to schedule a hearing on the motion for modification of the Children's placement. Cf. In re J.F., 27 A.3d 1017, 1021 (Pa.Super. 2011) (holding that, where emergent hearing was held regarding the removal of subject child from foster mother's home, foster mother was entitled, under section 6336.1, to notice and opportunity to be heard, but not to participate in hearing by rebutting testimony of witnesses, calling her own witnesses, and submitting exhibits). Accordingly, for the reasons expressed by the trial court, we perceive no denial of Foster Parents' guarantee to due process.

Orders affirmed.

Judgment Entered.


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